95-669 La.App. 3 Cir. 3/6/96, Rowe v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 06 March 1996
• Citation: 670 So.2d 718
• Parties: 95-669 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 718

670 So.2d 718

95-669 La.App. 3 Cir. 3/6/96

Robert E. ROWE and Tina Rowe, Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.

No. 95-669.

Court of Appeal of Louisiana,

Third Circuit.

March 6, 1996.

Writ Denied May 17, 1996.

On Appeal from the Fifteenth Judicial District Court, Parish of Lafayette; Edward D. Rubin, District Judge, Presiding.

Richard Charles Broussard, Lafayette, for Robert E. Rowe and Tina Rowe.

Preston D. Cloyd, Lafayette, for State Farm Mutual Automobile Insurance.

Before KNOLL, COOKS and SAUNDERS, JJ. [95-669 La.App. 3 Cir. 1] SAUNDERS, Judge.

In this action against their UM carrier, plaintiffs Robert and Tina Rowe appeal a jury's failure to award any damages, asserting manifest error in addition to error on the part of the trial court in evidentiary rulings blocking their efforts to discover and present evidence to the jury establishing the extreme bias alleged of defendant's expert witness, Dr. James McDaniel.

Having reviewed the record in extenso, we agree in part with plaintiffs' argument. Specifically, we find that the jury failed to adequately take into account the uncontradicted lay witness testimony as well as the conclusions of plaintiff's [95-669 La.App. 3 Cir. 2] treating physicians and reverse the trial court's conclusion that plaintiff failed to legally establish the causal link between Robert's back injuries and the automobile accident giving rise to this litigation. There is no question but that plaintiff sustained objectively identifiable bulging, protruding, or ruptured lumbar discs following the accident in question that he had not before its occurrence. Additionally, the evidence overwhelmingly suggests that plaintiff's medical difficulties have inflicted great physical discomfort upon plaintiff and great strains upon his professional and family lives.

We detect no error on the part of the jury in concluding that plaintiff's neck injuries were not so related, however.

Finally, although our holding with respect to plaintiffs' first assigned error is dispositive, we further conclude that the trial court erred in its evidentiary rulings.

I.

In this suit against his uninsured/underinsured motorist carrier, plaintiff, Robert Rowe, seeks damages for serious neck and back injuries he attributes to a May 23, 1991, automobile accident when his vehicle was rear-ended while stopped at a busy intersection in Lafayette. Plaintiff, Robert Rowe, driving a Chevrolet Suburban, was at a complete stop when his vehicle was struck with such force by an underinsured driver that his driver's seat was thrust backward into a horizontal position, resting against the rear seat.

Although the facts surrounding the accident are undisputed, the defendant contends that plaintiff's injuries were not caused by the automobile accident in question but by events clearly unrelated to the automobile accident, either plaintiff's exertions in moving a chest of drawers on December 22, 1992, or in his handling a light file folder in January 1993.

[95-669 La.App. 3 Cir. 3] II.

Plaintiff has the burden of proving causation by a preponderance of the evidence. Morris v. Orleans Parish School Bd., 553 So.2d 427 (La.1989). The plaintiff is aided in discharging this burden by the legal presumption that, "if before the accident the injured was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition." Lucas v. Insurance Company of North America, 342 So.2d 591, 596 (La.1977) (emphasis ours), quoted in Dabog v. Deris, 625 So.2d 492, 494 (La.1993) and Housley v. Cerise, 579 So.2d 973, 980 (La.1991).

III.

Plaintiff maintains that he sustained severe and partially disabling neck and back injuries in the May 23, 1991, accident. Because we find the Lucas rule dispositive, and because the histories associated with plaintiff's neck and back injuries vary greatly, we will review each injury separately.

EVIDENCE AT TRIAL

Neck Injury

Plaintiff maintains that the disc troubles in his neck are attributable to the accident. Defendant disagrees, claiming that plaintiff cannot connect the May 23, 1991 accident to his C5/6 disc troubles. The jury apparently believed the defendant and concluded that plaintiff injured his neck December 22, 1992, when he attempted to move an awkward fifty pound pine chest of drawers.

As defendant correctly observes, other than the soft tissue injury, plaintiff developed no symptoms following the accident at issue until seven months later, [95-669 La.App. 3 Cir. 4] when plaintiff injured himself moving furniture on December 22, 1992. This prompted Dr. Anseman in early 1993 to order the MRI which revealed a left paracentral disc protrusion at C5/6.

After reviewing all of the evidence, we cannot say the jury erred. While it is true, as plaintiff suggests, that his neck hurt immediately after the automobile accident, the record shows that plaintiff's neck pains had abated between September 1991 and December 22, 1992, when the furniture moving accident occurred, requiring plaintiff to first see Dr. Anseman for his neck on January 5, 1993. ( ¹)

In short, there was evidence before the jury to furnish a reasonable factual basis for its conclusion that plaintiff's disabling neck difficulties were caused solely by the intervening cause of December 22, 1992 rather than the May 1991 automobile accident. While it is true, as plaintiff suggests, that he had been receiving medical treatment between the date of the accident and December 22, 1992, the record shows that those treatments related to his back and had nothing to do with the conditions or pain in plaintiff's neck, which had abated long before December 22, 1992. Thus, we cannot say the jury erred in concluding that plaintiff's rather severe cervical disc problems did not result from the May 23, 1991 accident. The jury's conclusions were not clearly wrong. Canter v. Koehring, 283 So.2d 716, 724 (La.1973).

Finally, because plaintiff's initial neck pains were not continuous in time or type, the legal presumption articulated in Lucas and applicable in Dabog and Housley is inapplicable with regard to plaintiff's neck injuries.

Back Injury

The evidence compels us to reach a different conclusion with respect to plaintiff's back injury, however.

[95-669 La.App. 3 Cir. 5] The causal link connecting Mr. Rowe's back injury to the accident was established by most expert and all fact witness testimony. Causation was even conceded in part by defense counsel in closing arguments. ( ²)

Defendant maintains that the jury did not err in finding that plaintiff failed to establish the connection between the accident at issue and his back injuries. In making this assertion, defendant has no choice but to rely heavily on the testimony of Dr. James McDaniel, who provided the only support for the notion that plaintiff's back injuries might have been unrelated to the accident. Unlike Mr. Rowe's treating physicians, Dr. James McDaniel was hired only for litigation purposes, saw plaintiff one time, more than three years after the accident occurred, for fifteen or twenty minutes, only three weeks before trial.

Neither defendant's arguments nor Dr. McDaniel's testimony, which had apparently been anticipated by State Farm,( ³) overcomes the legal presumption of Lucas and its progeny. Plaintiff's disc troubles at L 4/5, conclusively established by an MRI conducted March 31, 1992, long before the December 22, 1992 incident described above,( ⁴) were sufficiently continuous to be legally attributable to the May 23, 1991 accident. The only possible basis for the jury's finding of no legal causation would have been some intervening cause. The record clearly shows that plaintiff's back injury is not attributable to any intervening cause.

[95-669 La.App. 3 Cir. 6] Additionally, the trial court erred in rejecting the testimony of plaintiff's treating physicians, two of whom concluded--more probably than not, if not conclusively--that plaintiff's injuries were attributable to the accident in question.

It is well-settled that the treating physicians' testimony will ordinarily be given greater weight than the testimony of a physician who examines a plaintiff for diagnosis only. Martin v. Travelers Insurance Co., 546 So.2d 958 (La.App. 3rd Cir.1989); Sepulvado v. Willamette Industries, 459 So.2d 1342 (La.App.3rd Cir.1984).

Chevalier v. L.H. Bossier, Inc., 617 So.2d 1278, 1284 (La.App. 3 Cir.1993).

Consequently, we reverse in part the conclusions of the trial court, both because it failed to apply the Lucas rule and because it failed to take into proper account the testimony of plaintiff's treating physicians. We find plaintiff proved by a clear preponderance of the evidence that his back injuries are attributable to the May 23, 1991 accident.

IV.

Evidentiary Rulings

Finally, plaintiff complains that the trial court erred in denying him the ability to discover and introduce evidence by which plaintiff intended to inform the jury of Dr. McDaniel's apparent bias as an advocate for the insurance industry. Specifically, plaintiff complains of: (1) the trial judge's refusal to permit him to have Dr. McDaniel produce certain financial and medical records; (2) the trial judge's order excluding as evidence of Dr. McDaniel's bias defendant's Motion in Limine filed two months before Dr. McDaniel examined plaintiff or reviewed his medical file; and (3) the trial judge's order excluding the testimony of Mr. Lawrence Curtis, a trial attorney who proffered testimony of Dr. McDaniel's alleged insurance advocacy based on his personal experience.

[95-669 La.App. 3 Cir. 7] Plaintiff's argument can best be explained in his own words, which we quote from his brief:

This Honorable Court is equipped with a...